Madras High Court
Poonkodi vs The Additional Chief Secretary To ... on 21 September, 2021
H.C.P(MD)No.439 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED :21.09.2021
CORAM:
THE HONOURABLE MR.JUSTICE V. BHARATHIDASAN
and
THE HONOURABLE MRS.JUSTICE J.NISHA BANU
H.C.P.(MD) No.439 of 2021
Poonkodi ... Petitioner/Mother of the detenu
-vs-
1. The Additional Chief Secretary to Government,
Home, Prohibition and Excise Department,
State of Tamilnadu,
Fort St. George,
Chennai-600 009.
2. The District Collector and District Magistrate,
Tenkasi District,
Tenkasi – 11.
3. The Superintendent of Prison,
Palayamkottai Central Prison,
Tirunelveli District. ... Respondents
PRAYER : Petition is filed under Article 226 of the Constitution of India
praying for the issuance of a Writ of Habeas Corpus or any other writ or
direction calling for the entire records, connected with the detention
order of the respondent No.2 in M.H.S.Confdl.No.05/2021 dated
1/8
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H.C.P(MD)No.439 of 2021
03.02.2021 and quash the same and direct the respondents to produce the
detenu by name Gopalakrishnan, son of Perumalsamy, aged about 23
years, now detained in Palayamkottai Central Prison before this Hon'ble
Court and set him at liberty forthwith.
For Petitioner :Mr.Vinoth Bharathi R
For Respondents :Mr.S.Ravi
Additional Public Prosecutor
ORDER
(Order of the Court was made by J.NISHA BANU, J.)
This habeas corpus petition has been filed by the mother of the
detenu, namely, Gopalakrishnan, son of Perumalsamy, aged about 23
years, challenging the detention order in M.H.S.Confdl.No.05/2021
dated 03.02.2021, passed by the second respondent, branding him as
“Goonda” as contemplated under Section 2(f) of Tamil Nadu Act 14 of
1982.
2.The learned counsel for the petitioner would state that the
similar case materials were not supplied to the detenu and the similar
case relied on by the detailing authority is not a similar case as the
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H.C.P(MD)No.439 of 2021
learned Judicial Magistrate has granted bail to the accused in similar case
under Section 167(2) Cr.P.C., and hence, there is no imminent possibility
of the detenu coming out on bail and therefore, there is no cogent
material to arrive at a subjective satisfaction that the detenu will come
out on bail, which shows the non-application of mind on the part of the
detaining authority. Further, the arrest was not properly intimated to the
relatives and it is against the judgment of the Honourable Apex Court.
That apart, several pages in the booklet are in English and the detailing
authority did not supply the Tamil Version; the Tamil and English version
of the grounds of detention and the booklet differs and the affidavit of
the sponsoring authority was not supplied to the detenu, which caused
serious prejudice to the detenu from making effective representation to
the higher authorities and there is no cogent materials to arrive at the
subjective satisfaction to show that the activities of the detenu is
prejudicial to the maintenance of public law and order to brand him as
goonda and further, there is a delay in considering the petitioner's
representation.
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H.C.P(MD)No.439 of 2021
3.The learned Standing Counsel appearing for the respondents
would state that after satisfying with the materials placed by the
sponsoring authority, the detaining authority has passed the impugned
detention order and therefore, there is no infirmity or illegality in the
same. He would produce the proforma regarding the disposal of the
petitioner's representation and would state that even if there is any delay
in disposal of the petitioner's representation, it has not caused any
prejudice to the rights of the detenu. Thus, he would pray for dismissal
of this petition.
4.Heard the learned counsel for the petitioner as well as the
respondents.
5.Even though the petitioner has raised the above grounds to quash
the impugned detention order, the learned counsel for the petitioner
would mainly place arguments on the ground of delay in disposal of the
petitioner's representation. In this regard, the learned counsel for the
petitioner would state that the procedural safeguards guaranteed under
Articles 21 and 22 of the Constitution of India have not been followed in
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H.C.P(MD)No.439 of 2021
this case and there is unexplained and inordinate delay in disposal of the
petitioner's representation which would vitiate the impugned order of
detention.
6.Perusal of the proforma furnished by the learned Standing
Counsel appearing for the respondents would show that as against the
impugned detention order, the petitioner made a representation to the
first respondent dated 26.02.2021 and it was received on 05.03.2021.
Remarks were called for on 05.03.2021 and it was received on
19.03.2021. The Deputy Secretary dealt with the matter on 19.03.2021.
The concerned Minister dealt with the matter on 12.04.2021 and the
representation came to be rejected on 15.04.2021. It is seen that in
between 05.03.2021 and 19.03.2021, there was a delay of 13 days, after
excluding the Government Holidays of 4 days, there was a delay of 9
days in the I part and in between 19.03.2021 and 12.04.2021, there was a
delay of 23 days, after excluding the Government Holidays of 11 days,
there was a delay of 12 days in the II Part and totally there was a delay of
21 days in considering the petitioner's representation.
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H.C.P(MD)No.439 of 2021
7. At this juncture, it is useful to refer the decision of the
Honourable Apex Court in the case of Rajammal vs. State of Tamil
Nadu and another, reported in 1999 (1) SCC 417, wherein, the Apex
Court has observed and held that it is for the Authority concerned to
explain the delay, if any, in disposal of the representation and if any delay
was caused on account of nay indifference or lapse in considering the
representation, such delay will adversely affect further detention of the
prisoner.
8. In the case on hand, as stated supra, the delay of 21 days in
considering the representation of the petitioner remains unexplained by
the respondents. Hence, in our considered view, the detention order is
liable to be set aside solely on the ground of delay by following the
above decision of the Apex Court.
9. In fine, the Habeas Corpus Petition is allowed. The detention
order in M.H.S.Confdl.No.05/2021, dated 03.02.2021, passed by the
second respondent, is set aside. Consequently, the detenu, namely,
Gopalakrishnan, son of Perumalsamy, aged about 23 years, now detained
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H.C.P(MD)No.439 of 2021
in Palayamkottai Central Prison, Tirunelveli District is directed to be
released forthwith unless his presence or custody or detention is required
in connection with any other case.
[V.B.D.,J.] & [J.N.B.,J.]
21.09.2021
Index : Yes / No
Internet : Yes / No
sj
Note :
In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order
may be utilized for official purposes, but,
ensuring that the copy of the order that is
presented is the correct copy, shall be the
responsibility of the advocate / litigant
concerned.
To
1. The Additional Chief Secretary to Government,
Home, Prohibition and Excise Department,
State of Tamilnadu,
Fort St. George,
Chennai-600 009.
2. The District Collector and District Magistrate,
Tenkasi District,
Tenkasi – 11.
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H.C.P(MD)No.439 of 2021
V.BHARATHIDASAN, J.
and
J.NISHA BANU, J.
sj
3. The Superintendent of Prison,
Palayamkottai Central Prison,
Tirunelveli District.
4. The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
ORDER MADE IN
H.C.P.(MD) No.439 of 2021
21.09.2021
https://www.mhc.tn.gov.in/judis/
